Virtual veracity

When the details of the Simon Singh and BCA case were played out online, the issues of free speech and libel, and the emerging power of wiki litigation, took centre stage. By Robert Dougans and David Allen Green

﻿

The case of British Chiropractic Association v Simon Singh was perhaps the first major English case to be litigated under the full glare of the internet. This did not just mean that people merely followed the case’s progress on blogs and messageboards: the role of the internet was more far-reaching than this – and in four significant ways.

First, each procedural step was the subject of intense scrutiny: the claim form, the defence, the reply, the application for ­permission to appeal and so on, were all set out on blogs and discussed by lawyers and science writers, as well as by interested ­bloggers and posters. This meant that the internet was being used more than the means by which certain pleadings and other documents were published. The publication was done in a manner which in turn encouraged participation and informed interest in the case from its very beginning. This ongoing and participatory process may be dubbed ’wiki litigation’.

This process in turn meant that once the mainstream media took an interest in the case, almost a year after it had commenced, journalists were able to exploit a rich online resource of materials beyond that which could have been achieved by a simple PR exercise. It also meant that the manner in which the online community had framed the case – as one about free speech and evidence-based medicine – was easily adopted by journalists in their eventual coverage.

Second, the merits of each major possible decision of Simon Singh in the case were played out on the internet. Blog posts setting out his options at each stage, especially as to whether to apply for permission to appeal, attracted scores of comments and thousands of readers. It also provided Singh with varied and well-reasoned views at each stage beyond that of his legal team and ­campaigning enthusiasts. Singh certainly took these views into account in his ­decision-making: the effect of the wiki litigation was thereby active as well as passive.

Third, and perhaps most importantly for this particular case, those following the case on the internet were able to demolish the central element of the British Chiropractic Association’s (BCA’s) case long before it was able to reach the courtroom. Here it is important that the libel claim was in respect of Singh’s dismissive response to the BCA’s evidence base for the use of chiropractic for certain children’s ailments. Singh stated there was “not a jot of evidence” but the BCA contended there was indeed evidence.

After a concerted effort by bloggers, the BCA finally published its so-called “plethora” of supporting evidence. In less than a day, the credibility of this evidence – and indeed that of the BCA for commending it – was destroyed. A dozen or so scientist-bloggers, including a Fellow of the Royal ­Society, were able to track down and assess each of the ­scientific papers cited by the BCA and were able to show beyond doubt that these papers did not support the BCA position at all. This was a stunning and devastating blogging exercise, and when it was formally repeated by the British Medical Journal a few weeks later it was almost an afterthought.

The technical evidence of a claimant in a controversial case had simply been demolished – and seen to be demolished – but not by the conventional means of ­contrary expert evidence and expensive forensic cross-examination, but by specialist bloggers. And there is no reason why such specialist bloggers would not do the same in a similar case.

Last, the internet-based interest of those following the Singh case is part of the explanation as to why that particular case became the basis of the current libel reform campaign. Unlike previous notorious libel cases such as McLibel, those following the case did not simply do so from afar; instead, they did so by familiarising ­themselves with the applicable libel law and scrutinising how the law dealt with each step. So when Sense About Science, and then Index on Censorship and English PEN launched their respective libel reform campaigns, there were already thousands of people upset with what English libel law was doing to their hero Singh and to ­science writing generally, who were ready to move on to tackling libel reform issues broader than those which arose in Singh’s case.

Could such an exercise in wiki litigation happen again? The nature of blogging is that it is occasional and voluntary, so it ­cannot be taken for granted in the same way that traditional PR will exploit the mainstream media. However, should the blogosphere get engaged with a case, the parties can expect the dynamics of the case to be affected – and in a manner beyond their control. This is especially true if the blogosphere chooses to undermine or endorse detailed evidence crucial to a case.

And if there is another case of wiki litigation, and not necessarily in a libel case, claimants may also find themselves in the predicament of the British Chiropractic Association, and have both their reputation and evidence destroyed on the internet during the course of the litigation in a manner unthinkable only a few years previously.

Robert Dougans is an associate at Bryan Cave and The Lawyer’s Assistant Solicitor of the Year. He acted for Simon Singh. David Allen Green is of counsel at Preiskel & Co and author of the Jack of Kent blog.

Whilst perhaps this is the first English case to be litigated in this way, it might be worth noting that the precedent has already been set for us computer geeks in the SCO -v- world bogo cases mostly in Utah starting in 2003 and covered relentlessly on groklaw.net – still grinding on after more than 7 years and despite SCO (thankfully) losing virtually everything.

What will be extraordinary about this case is if it results in changes to defamation law, especially as interpreted by certain judges. We really need to lose the reputation of being the global libel jurisdiction du jour.

On the other hand, in my Employment Tribunal case against Kingston University, where relevant evidence was published on the internet, the Respondent and Tribunal used that publication as evidence of “unreasonable, vexatious and/or scandalous” conduct of the proceedings, and the CPS prosecuted me for ‘harassment,’ convicting me in absentia, only to have the case thrown out by a District Judge for breaching my human rights to a fair trial. Now I find myself, once, again, on the dock in a new trial for harassment, set to take place on 22-23 July.

So much for wikilitigation, which when unsupported by huge force of legal arms, results in decimation of the less well armed party. Whereas the Respondent was able to spend nearly £500,000 of public money on the case in order to silence truthful disclosure.